CASE OF ZHELEZOV v. BULGARIA

FOURTH SECTION

CASE OF ZHELEZOV v. BULGARIA

(Application no. 70560/13)

JUDGMENT
 

This version was rectified on 14 September 2021 under Rule 81 of the Rules of Court.

STRASBOURG

22 June 2021

This judgment is final but it may be subject to editorial revision.

In the case of Zhelezov v. Bulgaria,

The European Court of Human Rights (Fourth Section), sitting as a Committee composed of:

 Iulia Antoanella Motoc, President,
 Gabriele Kucsko-Stadlmayer,
 Pere Pastor Vilanova, judges,
and Ilse Freiwirth, Deputy Section Registrar,

Having regard to:

the application (no. 70560/13) against the Republic of Bulgaria lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by a Bulgarian national, Mr Dimitar Markov Zhelezov (“the applicant”), on 7 November 2013;

the decision to give notice of the application to the Bulgarian Government (“the Government”);

the parties’ observations;

the decision to reject the Government’s objection to the examination of the application by a Committee;

Having deliberated in private on 1 June 2021,

Delivers the following judgment, which was adopted on that date:

INTRODUCTION

1.  The case concerns a complaint under Article 6 §§ 1 and 3 of the Convention that, in criminal proceedings against the applicant, the court of last instance adopted a new legal classification, without affording the applicant an opportunity to comment.

THE FACTS

2.  The applicant was born in 1945 and lives in Sofia. He was represented before the Court by Mr M. Ekimdzhiev, a lawyer practising in Plovdiv.

3.  The Government were represented by their Agents, Ms I. Nedyalkova and Ms M. Kotseva, from the Ministry of Justice.

4.  The facts of the case, as submitted by the parties, may be summarised as follows.

5.  On 23 June 2010 the applicant was charged with sexual assault, which he had allegedly committed on the previous day against an elderly neighbour of his, taking advantage of her inability to resist (she suffered from dementia and he had, in addition, given her alcohol). On 18 October 2010 the applicant was additionally charged with rape.

6.  In October 2010 the prosecution authorities indicted the applicant for sexual assault and rape. However, in a decision of 15 December 2010, finding that the bill of indictment was unclear and contained contradictory statements, a judge of the Omurtag District Court remitted the case to the prosecution authorities for further investigation.

7.  A new indictment against the applicant was filed by the prosecution authorities in May 2011. It concerned only the offence of rape under Article 152 § 1 of the Criminal Code (see paragraph 13 below).

8.  In the ensuing proceedings, the Omurtag District Court heard experts, including a doctor who had examined the victim after the alleged attack. The experts could not say with certainty whether the victim had had sexual intercourse or had been subjected to other sexual activity. No biological material from the applicant had been found on her body. The Omurtag District Court also heard witnesses, including a neighbour who stated that she had seen the applicant and the victim naked and had interrupted the alleged rape. Afterwards, she had called the police; upon their arrival, the officers had found the applicant still in the victim’s house and the victim still naked. Because of her dementia, the victim was unable to testify. The applicant denied any sexual activity with her, submitting, among other things, that she had undressed herself and that her state of health would have made any sexual intercourse with her impossible.

9.  In a judgment of 19 December 2011 the Omurtag District Court convicted the applicant of rape. In establishing the facts, it found that the applicant had had sexual intercourse with the victim, after giving her alcohol, thus rendering any resistance on her part impossible, and undressing her. It gave the applicant a suspended sentence of three years’ imprisonment.

10.  The conviction and the sentence were confirmed on 8 March 2012 by the Targovishte Regional Court.

11.  In a final judgment of 8 May 2013 the Supreme Court of Cassation (hereinafter “the Supreme Court”) noted that it had not been proven that the applicant had had sexual intercourse with the victim: the experts had not been able to confirm it, and the neighbour heard as a witness who had interrupted the alleged attack had not directly observed such intercourse. There had been only indirect evidence from which different conclusions could be drawn, whereas a conviction could not be based on supposition.

12.  The Supreme Court further observed, relying in particular on Article 354 § 2(2) of the Code of Criminal Procedure (see paragraph 15 below) and noting that no additional evidence had to be collected, that it did not have to remit the case for a fresh examination by the lower courts. It considered that, instead of rape, the applicant was guilty of sexual assault – an offence under Article 150 § 1 of the Criminal Code (see paragraph 14 below). It pointed out that the difference between rape and sexual assault was only “in the nature of the sexual contact”. The Supreme Court thus decided to amend the Targovishte Regional Court’s judgment, reclassifying the offence which had been committed under Article 150 § 1 instead of Article 152 § 1 of the Criminal Code (see paragraphs 13-14 below). Lastly, it considered that there was no need to amend the applicant’s sentence, and upheld the lower courts’ judgments in that regard.

RELEVANT LEGAL FRAMEWORK AND PRACTICEThe Criminal Code

13.  Article 152 § 1 of the Criminal Code defines rape as sexual intercourse with a woman who is incapable of resisting, who is compelled by the use of force or threats or who is brought to a state of helplessness by the perpetrator. Where there are no additional aggravating circumstances, rape is punishable by two to eight years’ imprisonment.

14.  Any other sexual assault (блудство), defined as “any action aimed at arousing or satisfying a sexual desire without intercourse”, committed through the threat or use of force or against a person incapable of resisting the attack, is also punishable, under Article 150 § 1 of the Criminal Code, by two to eight years’ imprisonment.The Code of Criminal Procedure

15.  Article 354 of the Code of Criminal Procedure defines the competence of the Supreme Court of Cassation to decide on a case brought before it or to remit it to a lower court. Paragraph 2(2) of that Article states that the Supreme Court may itself decide on a case, amending a lower court’s judgment, where, in particular, it reclassifies the offence as one carrying the same or a more lenient punishment.

16.  Nevertheless, in some cases falling under the above-mentioned provision, the Supreme Court has ordered remittal, relying in particular on the Court’s judgment in Penev v. Bulgaria (no. 20494/04, 7 January 2010), and finding that such a remittal was necessary to guarantee the accused’s right to a fair trial (Решение № 625 от 4.01.2011 г. на ВКС по н. д. № 6461/2010 г., III н. о.; Решение № 314 от 20.06.2011 г. на ВКС по н. д. № 1651/2011 г., I н. о.).

THE LAWALLEGED VIOLATION OF ARTICLE 6 §§ 1 and 3 OF THE CONVENTION

17.  The applicant complained under Article 6 § 1 of the Convention taken in conjunction with Article 6 § 3 (a) and (b), as well as under Article 13 of the Convention, that he had been unable to defend himself against the accusation of sexual assault after the Supreme Court of Cassation had adopted that legal classification of the offence committed by him.

18.  The Court is of the view that the complaint falls to be examined under Article 6 §§ 1 and 3 (a) and (b) which, in so far as relevant, reads:

“1. In the determination of ... any criminal charge against him, everyone is entitled to a fair ... hearing ... by [a] ... tribunal ...

3. Everyone charged with a criminal offence has the following minimum rights:

(a) to be informed promptly, in a language which he understands and in detail, of the nature and cause of the accusation against him;

(b) to have adequate time and facilities for the preparation of his defence;

...”Admissibility

19.  The Court notes that the application is neither manifestly ill-founded nor inadmissible on any other grounds listed in Article 35 of the Convention. It must therefore be declared admissible.Merits

20.  The applicant pointed out that he had never defended himself against a charge of sexual assault because he had not been indicted and committed for trial upon such a charge. He observed that in criminal proceedings it was the bill of indictment which defined the questions the parties had to prove or disprove. He stated, furthermore, that no specific actions on his part constituting sexual assault had ever been described in the decisions of the domestic courts, not even by the Supreme Court, which had found him guilty of that offence.

21.  The Government pointed out that, at the start of the investigation against him, the applicant had been charged with both sexual assault and rape, and considered that the question whether he had committed sexual assault or rape had been “the central matter of debate” in the criminal proceedings. The Government thus argued that the alternative characterisation of the facts had been “clear from the start”. They pointed out that the offences of rape and sexual assault were very similar and that the different characterisation given by the Supreme Court concerned “a single detail regarding the manner in which the offence had been committed”. Lastly, the Government contended that the applicant would not have adopted any different line of defence had he been aware of the Supreme Court’s interpretation.

22.  The Court points out that the requirements of paragraph 3 of Article 6 of the Convention represent particular aspects of the right to a fair trial as guaranteed in paragraph 1 of that Article. The Court will therefore examine the present case from the point of view of these two provisions taken together (see, among other authorities, Mattoccia v. Italy, no. 23969/94, § 58, ECHR 2000‑IX).

23.  Article 6 § 3 (a) of the Convention affords the defendant in criminal proceedings the right to be informed of the cause of the accusation, that is to say, the acts he is alleged to have committed and on which the accusation is based, as well as the legal characterisation given to those acts. Sub-paragraphs (a) and (b) of Article 6 § 3 are connected, and the right to be informed of the nature and the cause of the accusation must be considered in the light of the accused’s right to prepare his defence (see Pélissier and Sassi v. France [GC], no. 25444/94, §§ 52 and 54, ECHR 1999‑II, and Sadak and Others v. Turkey (no. 1), nos. 29900/96 and 3 others, §§ 49-50, ECHR 2001‑VIII).

24.  In the case at hand, in the valid and final bill of indictment, the applicant was indicted for rape (see paragraph 6 above). The Court points out in this connection that the indictment, setting out the factual and legal basis of the charges against the defendant, plays a central role in criminal proceedings (see Kamasinski v. Austria, 19 December 1989, § 79, Series A no. 168, and Varela Geis v. Spain, no. 61005/09, § 51, 5 March 2013).

25.  Throughout his trial, the applicant defended himself against the charge of rape, including by arguing that the victim’s state of health had made any sexual intercourse with her impossible (see paragraph 8 above). Ultimately, the Supreme Court found that charge unproven, since it had been based on indirect evidence which had been inconclusive (see paragraph 11 above). Nevertheless, it considered that the applicant had been guilty of sexual assault (see paragraph 12 above).

26.  The Court does not find it established that the applicant should have been aware of the possibility of the Supreme Court finding him guilty of sexual assault, or that such a possibility was, as argued by the Government, “clear” (see paragraph 21 above). It observes that no conduct on the part of the applicant amounting to such an assault was described in the judgments of the Omurtag District Court or the Targovishte Regional Court (see paragraphs 9-10 above). Much of the parties’ efforts during his trial were aimed at proving or disproving that sexual intercourse took place, and it does not appear that the prosecution authorities aimed to establish any other infringement of the victim’s sexual integrity.

27.  The Court observes, furthermore, that, although similar, rape and sexual assault are different offences under Bulgarian criminal law (see paragraphs 13-14 above), and the elements which have to be proven to secure a conviction differ.

28.  The Court accordingly considers that, in using the right which it unquestionably had to recharacterise the facts over which it had jurisdiction, the Supreme Court should have afforded the applicant the possibility of exercising his defence rights on that issue in a practical and effective manner and in good time. The Court has held that the national authorities are obliged to pay “special attention” when notifying the accused of the charges (see Kamasinski, § 79, and Varela Geis, § 51, both cited above, as well as Dallos v. Hungary, no. 29082/95, § 47, ECHR 2001‑II). The Supreme Court could have, for example, adjourned the hearing for further argument, or, alternatively, allowed the applicant the opportunity to make written submissions (see Penev v. Bulgaria, no. 20494/04, § 43, 7 January 2010). Such an approach had been taken by the Supreme Court in some previous cases, despite the provision of Article 354 § 2(2) of the Code of Criminal Procedure (see paragraphs 15-16 above). The Court cannot speculate as to whether the applicant would have put forward any new arguments had he been given the opportunity to defend himself against the alternative charge (see Varela Geis, cited above, § 52, and D.M.T. and D.K.I. v. Bulgaria, no. 29476/06, § 82, 24 July 2012).

29.  In the light of the above considerations, the Court concludes that the applicant was not informed in detail of the nature and the cause of the accusation against him, that he was not afforded adequate time and facilities for the preparation of his defence, and that he did not receive a fair trial. The absence of a clear requirement in the applicable law to allow the accused to defend himself against the amended charges was undoubtedly decisive in that respect (see Penev, cited above, § 44).

30.  There has accordingly been a violation of paragraph 3 (a) and (b) of Article 6 of the Convention, taken together with paragraph 1 of that Article.APPLICATION OF ARTICLE 41 OF THE CONVENTION

31.  Article 41 of the Convention provides:

“If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.”

32.  The applicant claimed 13,650 Bulgarian levs (BGN), the equivalent of 6,980 euros (EUR), in respect of pecuniary damage. This sum represented the damages that had been awarded against him in the criminal proceedings, plus the interest he had paid on that sum. In respect of non-pecuniary damage, the applicant claimed EUR 10,000.

33.  The Government contested those claims.

34.  The Court fails to perceive any causal link between the violation of the applicant’s rights and the damage claimed. While it has found that the applicant’s right to a fair trial was breached, it has not found that he was wrongly convicted, and it cannot speculate on the outcome of the proceedings had Article 6 of the Convention not been breached. Accordingly, the Court dismisses the claim for damage.

35.  The Court points out, in view of the nature of the violation found, that the most appropriate form of redress in the case would be to reopen the domestic proceedings in due course and re‑examine the case in keeping with all the requirements of a fair trial (see D.M.T. and D.K.I. v. Bulgaria, cited above, § 139).

36.  The applicant claimed, in addition, BGN 1,102 (EUR 563) in respect of the costs and expenses charged on him in the criminal proceedings.

37.  The applicant also claimed EUR 5,382 for his costs and expenses in the proceedings before the Court, which included remuneration of his representative, as well as the costs for translation, postage, copying and printing. In support of this claim, the applicant presented a contract for legal representation; it is indicated in the document that he has already paid his lawyer BGN 1,200 (EUR 613) and is liable to pay the remainder of the lawyer’s remuneration at the close of the proceedings. The applicant also submitted a time sheet and invoices. He requested that, out of any amount awarded under the present head, EUR 613 be paid to him, and the remainder be paid to the law firm Ekimdzhiev and Partners.[1]

38.  The Government contested those claims, arguing in particular that the claim concerning the proceedings before the Court was excessive.

39.  The applicant has not shown that the expenses incurred by him in the domestic proceedings were necessary, that is, that they related to an attempt on his part to remedy a violation of the Convention (see, mutatis mutandis, Idakiev v. Bulgaria, no. 33681/05, § 78, 21 June 2011). Therefore, this claim must be dismissed.

40.  The Court, taking into account the circumstances of the case, in particular its repetitive nature (see the case-law cited above), awards the applicant EUR 1,200 in respect of all costs and expenses incurred in the present proceedings. As requested (see paragraph 37 above), the sum of EUR 613 is to be paid to the applicant, and the remainder to the law firm Ekimdzhiev and Partners.[2]

41.  Lastly, the Court considers it appropriate that the default interest rate should be based on the marginal lending rate of the European Central Bank, to which should be added three percentage points.

FOR THESE REASONS, THE COURT, UNANIMOUSLY,Declares the application admissible;Holds that there has been a violation of Article 6 § 3 (a) and (b) of the Convention, taken together with Article 6 § 1, in that the applicant was not informed in detail of the nature and cause of the accusation against him, was not afforded adequate time and facilities for the preparation of his defence and did not receive a fair trial;Holds

(a)  that the respondent State is to pay the applicant, within three months, EUR 1,200 (one thousand two hundred euros), plus any tax that may be chargeable to the applicant, to be converted into the currency of the respondent State at the rate applicable at the date of settlement, in respect of costs and expenses, EUR 613 (six hundred and thirteen euros) of which are to be paid to the applicant and the remainder to the law firm Ekimdzhiev and Partners [3];

(b)  that from the expiry of the above-mentioned three months until settlement simple interest shall be payable on the above amounts at a rate equal to the marginal lending rate of the European Central Bank during the default period plus three percentage points;Dismisses the remainder of the applicant’s claim for just satisfaction.

Done in English, and notified in writing on 22 June 2021, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.

 Ilse Freiwirth  Iulia Antoanella Motoc
Deputy Registrar President

[1] Rectified on 14 September 2021: the text was “…and the remainder be paid directly to his legal representative”

[2] Rectified on 14 September 2021: the text was “…and the remainder be paid directly to Mr M. Ekimdzhiev.”

[3] Rectified on 14 September 2021: the text was “…and the remainder be paid directly to his legal representative”

 

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